News & Articles

Annie Banerjee, an immigration lawyer based in the Houston area, offers insightful commentary about a crucial case involving a wronged Vietnam veteran.

The U.S. Supreme Court recently ruled in the case of Padilla v. Kentucky, deciding that if an immigrant is wrongly advised by his criminal defense attorney about the immigration consequences of a crime that the pertinent information is prejudiced and cannot serve as grounds for automatic deportation. Padilla, a Vietnam veteran, had been a permanent resident for more than 40 years. He was charged with drug distribution charges in Kentucky and his criminal defense attorney had instructed him to plead guilty, and that such a pleading would have no immigration consequences. The state of Kentucky said that Mr. Padilla had no right to withdraw his plea when he learned of the deportation consequence. The attorney was wrong, and Padilla was sent for deportation. The March 31, 2010, Supreme Court decision reverses the Kentucky court and also rejected the federal government’s position (which had been adopted by several courts) that a noncitizen is protected only from “affirmative misadvice” and not from a lawyer’s failure to provide any advice about the immigration consequences of a plea.

Annie Banerjee, an immigration lawyer based in the Houston area, found this judgment particularly intriguing. “What is astonishing is that this conservative Supreme Court recognized that deportation laws are extremely harsh now. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation. Immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes, “Banerjee explained.

According to Banerjee, criminal defense lawyers have an affirmative duty to learn and advise clients about the immigration consequences of a crime.

This Supreme Court decision was applauded by the American Immigration Council.

“The right to counsel is at the inner core of our criminal justice system,” concluded Banerjee.

A proposed law pending in the Arizona legislature, S.B. 1070, would oppress foreign nationals and U.S. citizens alike – especially if they don’t seem to some folks like “real Americans.”

Some are characterizing Senate Bill 1070 as “hate legislation.” Hitler would have liked it while his National Socialists were revving up their engines circa 1935. If it becomes law, Arizona will suddenly be transformed into an unfriendly place for foreign nationals and U.S. citizens alike. Provisions in the proposed bill would criminalize noncitizens and dehumanize anyone who might not look, act, speak, or smell like an American.

For instance, the law requires that it would be up to state officials to determine a person’s immigration status. If someone they encounter in the course of their work is “reasonably suspected” to be unlawfully present in the United States, their suspicions would suddenly become lawful vigilantism. All people in Arizona would be vulnerable to racial profiling, including U.S. citizens. But what exactly is “reasonable suspicion” of alienage? If a person speaks with too pronounced of a foreign accent, or has a skin color that appears to be beige, or possesses facial features suggestive of an Asian or Latino, or smells funny, should they be investigated with future intentions of deportation? If a school crossing guard notices a student who doesn’t speak English and has the look of a Laotian, who might have moved to Mesa from Bellevue, Washington, is the crossing guard now obligated to check the child’s papers or call his parents and ask about immigration status?

Senate Bill 1070 will also permit a law enforcement officer, without a warrant, to arrest a person if, according to the officer’s judgment, probable cause exists to believe that the person has committed any public offense that makes the individual removable from the U.S. Under such a scenario, what offenses might somehow emerge as deportation offenses? Under this Brave New World, “crimes” such as public urination, jaywalking, spitting on the sidewalk while glaring maliciously at the officer, or partial nudity might all become an unfortunate person’s last act prior to a slow boat to Yemen? Apparently, some ethically-challenged Arizona legislators are still unfamiliar with the U.S. Supreme Court’s March 31, 2010, decision in Padilla v. Kentucky which delineates how immigration law is so complex that trained consultants on immigration matters have difficulty deciding which offenses rise to the gravity of deportable.

In July of 2010, I decided to take a road trip to the red rocks of Sedona, Arizona. A few days of rest, relaxation and hiking from the daily grind of my law practice in Houston, Texas seemed inviting. So I packed up my 04 Lexus and headed West.

But long before the red rocks of Sedona loomed in the horizon, I was puzzled by a huge sign saying, “Heil Brewer— Death to Brown people.” Since I’m brown, I was kind of taken aback, and decided to watch my speed and obey all traffic laws. After all, this is still America, where I am a naturalized citizen, and I would be Ok, if I did not break any rules. Wrong. Within 15 minutes I heard the sirens behind me asking me to stop. I look behind me as I stopped, and there is a police car with pictures of Ms. Brewer and Ms Palin on the dashboard. Once the officer walks up to me, I said, “but officer I was well within the speed limit.”

When you entered the US, you had to fill out either a white form if you entered with a visa, or a green form if you did not need a visa. Upon leaving the US, you are supposed to surrender that I-94 form to the US government. But sometimes that does not happen. For whatever reason, the airlines or whoever it is forgets to take the form. So now the US thinks you are in the country illegally, past the date stamped in the I-94, and you will have problems.

If this happens, please mail the I-94 back (certified mail) other documents to prove that you are out of the country, to:

DHS-CBP-SBU1084 South Laurel RoadLondon, KY, 40744USA

Documents to prove that you are out of the country can include, but is not limited to the following documents:

1. Original boarding passes you used to depart another country, such as Canada, if you flew home from there;2. Photocopies of entry or departure stamps in your passport indicating entry to another country3. after you departed the United States (you should copy all passport pages that are not completely blank, and include the biographical page containing your photograph); andPhotocopies of other supporting evidence, such as:

4. Dated pay slips or vouchers from your employer to indicate you worked in another country after you departed the United States,5. Dated bank records showing transactions to indicate you were in another country after you left the United States,5. School records showing attendance at a school outside the United States to indicate you were in another country after you left the United States, and6. Dated credit card receipts, showing your name, but, the credit card number deleted, for purchases made after you left the United States to indicate you were in another country after leaving the United States.

Lottery-picked employment-based visas go like hotcakes and professional people striving to come to America can easily be left out. But then there’s the Second Preference, albeit with some caveats.

Ever heard of the I-140 Educational and Work experience equivalency? Immigration is the only niche within the legal arena where quotas are still allowed. It is common knowledge that employment-based visas, such as the coveted H-1B, aren’t easily obtained by professionals wishing to immigrate to the United States from India and China. These are populous nations teeming with qualified professional people, and their national quotas get filled quickly resulting in lengthy wait times, especially for third preference visas. So it is only natural that everybody is striving for the Second Preference. Fine and dandy, but there are some caveats.

For instance, your experience must be post-degree and a pre-Petitioning Company. You say that you have experience in the same job at the petitioning company? This isn’t enough because if the employer is able to train the beneficiary, he’d prefer training an American – not you.

Oh, you have a Master’s Degree? If it’s not from the U.S., the problem of congruence can arise – as your Masters isn’t likely to match your Bachelors as a credential.

Did you know that evaluations are for advisory purposes only, and that the USCIS does not have to follow them? In the same vein, work experience can’t be substituted for years in a degree program – as the H-1B allows.

Recommendations by the Nebraska Service Center for Degree equivalency could also be pertinent.

If you do possess a U.S. master’s degree – if it’s in the field required, no additional documents would be required.

Your 4 year bachelor’s degree + 2 year master’s degree obtained in India with need to be “subbed” by degrees in the same or related fields to equal a U.S. master’s degree.

If you possess a 3 year bachelor’s degree + 1 year postgraduate diploma + 2 year master’s degree obtained in India, to become acceptable for educational preference you’ll require degrees in the same or similar field or a bachelor’s degree + one additional year of education, to measure up. If you have 5 years of progressive experience, this combination could be acceptable as a master’s degree equivalency.

I would like to see Akhil Amar as the next Supreme Court Justice. And that is not only because he knows more about Constitutional Law than most Supreme Court Justices. But as a group, Asians don’t have much clout in Politics. We have small numbers. Yet, we score the highest SAT scores, we earn the highest average salaries of any other group. Yet we have negligible representation in Government.

Our children get into the best colleges through merit alone, we don’t have affirmative action or legacy. And very often than not, schools discriminate against us. Princeton was sued recently by Asians because they adversely discriminated against Asians. So all other groups can get in with much lower grades than we do. That is why schools have created this “holistic” approach, so that they can tell Asians that education is not enough.

The legal profession takes this discrimination even one step further. Not many Asians are partners of big law firm. So even though Neal Katyal convinced the Bush Supreme Court to rule against Guantanamo, he was just a professor at Georgetown. Mr. Amar is a professor at Yale. But Professorships don’t pay. Neither does in house counsel. So most Asians become doctors.

In the process we are loosing some brilliant minds to Law. We need to uphold the image of Asians as effective lawyers. And after all they have the brains and education to prove it.

Immigration is the only place in law where quotas are still permissible, and everybody knows that especially for India and China the quotas for employment based visas disappear very quickly. These are huge countries with many professional people and their quotas get used up resulting in lengthy wait times, especially for third preference visas. Therefore everyone wants to get into the Second Preference.

There are some caveats though:

1. The experience has to be AFTER you get the degree and BEFORE you join the Petitioning Company. The experience in the same job at the petitioning company does not work because the rationale is that if the employer can train the beneficiary, they can train an American graduate as well.

2. To get to the second preference with a Master’s Degree, if that degree is not from the US, there is always a problem. If the underlying Bachelors Degree and Master’s Degree does not match, then it is not usually counted as a Bachelors Degree.

3. Evaluations are advisory only, and USCIS does not have to follow them. Similarly, work experience cannot be used to substitute years of Degree as you can in H-1B.

4. H-1B standard is much less stricter in terms of Degree equivalency than I-140.

Below are some recommendation by Nebraska Service Center for Degree equivalency:

1. US master’s degree – as long as it is in the field required no additional documents would be required no additional documents would be required

2. 4 yr bachelor’s degree + 2 yr master’s degree (India) – with degrees in the same or related fields this will generally be considered the equivalent to a U.S. master’s degree with no additional documents required

3. 3 yr bachelor’s degree + 3 yr master’s degree (India) – with degrees in the same or related fields this will generally be equivalent to U.S. master’s degree with no additional documents required

4. 3 yr bachelor’s degree + 1 yr postgraduate diploma + 2 yr master’s degree (India) with degrees in the same or similar field this would generally be considered the equivalent of a bachelor’s degree plus one additional year of education so the beneficiary would also need to have 5 yrs progressive experience. If the postgraduate diploma is determined to be progressive postgraduate education that is a continuation of the 3 yr bachelor’s degree it is possible that this would be considered the equivalent to a Master’s degree and there would be no need to establish 5 yrs progressive experience.

5. 3 yr bachelor’s degree + 2 yr master’s degree (India) – generally this would be the equivalent of a bachelor’s degree + 1 year and would require 5 yrs progressive experience to qualify under the 2nd preference category.

7. 3 yr bachelor’s degree + 2 yr master’s degree + 1 yr postgraduate diploma (India) – generally this would be the equivalent of a bachelor’s degree + 1 year and would require 5 yrs progressive experience to qualify under the 2nd preference category. If the postgraduate education that is a continuation of the 3 yr bachelor’s degree or the 2 yr master’s degree it is possible that this would be considered the equivalent to a US Master’s degree and there would be no need to establish 5 yrs progressive experience.

In the opinion of Annie Banerjee, a Houston-area immigration lawyer, Senate Bill 1070, a new piece of legislation being proposed by the Arizona legislature, would be more worthy of Nuremburg circa 1934 than Arizona 2010.

Hate speech is one thing, hate legislation quite another. A proposed state senate bill being proposed in Arizona would, if implemented, set a Draconian standard for criminalizing noncitizens and dehumanizing any person who doesn’t look, act, speak, or smell “American,” a term that really can’t be defined except in the minds of the intolerant. If passed into law, Senate Bill 1070 would be yet another law on the books which would justify racial profiling under the guise of “reasonable suspicion.”

“This law being considered by the Arizona legislature is awful,” asserts Annie Banerjee, an immigration lawyer based in the Houston area, “and even its underlying rationale is faulty.”

The law would allow a vagary known as “reasonable suspicion” to become the premise of racial profiling to become an active component in the administration of justice. State officials would be able to determine a person’s immigration status by utilizing hunches harbored behind a veil of bias. “What exactly is reasonable suspicion of alienage,” Banerjee asks, “Is it not being able to speak English? Is it a shade of skin color that’s not white, a religion other than Protestant? Is it facial features that suggest an ethnicity other than Caucasian?”

Banerjee is able to contemplate a crossing guard encountering a child walking to school who doesn’t speak English, say an East Indian child born in Bombay but whose family moved to Mesa, Arizona from Bellevue, Washington, is the officer now obliged to examine the child’s papers or call her parents and ask about immigration status? “It’s bordering on Kafka-esque,” Banerjee argues, “and certainly not what you’d expect in a country with so-called ‘open borders.’ The little girl would probably feel like she was caught in a nightmare version of Alice in Wonderland.”

Banerjee questions if anyone promoting this piece of legislation “has even read the U.S. Supreme Court’s March 31, 2010, decision in Padilla v. Kentucky which states in no uncertain terms that immigration law is so complex that even trained experts have difficulty delineating which offenses lead to deportation. In Arizona I wouldn’t be surprised if jaywalking became a deportation crime if this stupid law is passed. It’s much worse than hate speech – it’s more like hate legislation,” Banerjee concludes.

The USCIS announced today (April 01, 2010) that it has killed the H-1B program. I just saw this on their web site. The press release said that the Service could not control the program, that it went through too many intermediaries and is therefore impermissible. The Spokesperson from the Vermont Service Center, Mr. New Field said that the H-1B petition originated with the employer offering the employee a job. Then the employer had to go through an intermediary, the lawyer, who then goes through the Department of Labor and then through the post office, before submitting the petition to the Vermont Service Center. The Vermont Service Center then has to collect it through the pouring rain. The mail room clerks then collects the fee, and issues the receipts. The officer who ultimately adjudicates the petition cannot control the petition because of all these intermediaries. The USCIS cited Brown Vs Board of Education as precedent in discontinuing the program.

The memo further stated if your new H-1B petition reached their offices today, you need not worry. The CIS will do what they would have done anyways, deny the petition.

The Supreme Court of the United States today in Padilla V Kentucky, ruled that if an immigrant is wrongly advised by his Criminal Defense Attorney about the Immigration consequences of a crime,is prejudiced and cannot be automatically deported.

Padilla was a Vietnam vet and had been a Permanent Resident for more than 40 years. He was charged with drug distribution charges in Kentucky and his Criminal Defense lawyer told him to plead guilty, and that it would have no immigration consequences. He was wrong and Padilla was sent for deportation.

What is astonishing is that this conservative Supreme Court recognized that deportation laws are extremely harsh now. “While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.“

Thus Criminal Defense Lawyers have an affirmative duty to learn and advise clients about the immigration consequences of a crime.